Ellen Pao Can Still be a Feminist Hero

Is this the end of the Ellen Pao saga? By now you probably know that Pao lost this year's high-profile gender discrimination lawsuit against Silicon Valley powerhouse VC firm Kleiner Perkins Caufield and Byers.

You likely also recall that Ellen Pao was ousted as Reddit interim CEO by a racist, misogynistic online mob and a board that promptly replaced her with a white guy who pledged to maintain all her policies.

Now Pao is making headlines again, but this time it's for writing her own ending: She is dropping her appeal of the court's decision in her lawsuit, including the order to pay all of Kleiner's legal fees.

"I cannot afford the risk of even more costs to fight against a firm with tremendous financial resources and massive legal and PR armies," Pao said in a statement released late last week. "This battle has been painful for me personally and professionally, and also for my family. It is time to move on."

Still, Pao has a knack for snatching at least a PR victory from the jaws of defeat: Despite two huge losses in the past six months—and a third here—she has nonetheless done so, again, while taking aim at an unfair and wildly lopsided system. "My experience shows how difficult it is to address discrimination through the court system," Pao wrote in a pointedly timed essay on Re/code that detailed the challenges of bringing this case, from the high standard of proof of discrimination (the court must find that discrimination was "intentional and a substantial motivating factor for different treatment") to the short window for bringing suit (one year—very short as statutes of limitation go) to all the tactical advantages that can be achieved with deep pockets (endless legal teams filing endless motions). And if a plaintiff doesn't win, then they may be ordered by the court to pay legal costs (keep in mind that these cases usually pit an individual against a company).

How could she not have lost to Kleiner, she asks, when even someone with her financial resources was dwarfed by their never-ending cash juggernaut? The system is stacked against her—and if it's stacked against someone like her, you can damn well bet that you have no chance in hell. (This of course leaves aside the merits of her case—about which there was heated debate!—and which was conclusively decided by the court. But there is no denying that in litigation, as in everything else in the world, resources make all the difference.)

Pao took it a step further though, striking at the social policy underlying her case. "Forcing plaintiffs in civil rights actions to pay for defendants' costs is just wrong," writes Pao, reminding us all that this is about more than just her case—this is about social justice.

She's not wrong. If you are a woman or minority (or, an often doubly discriminated against woman of color) in Silicon Valley, and you are being given the shaft at work, Pao provides a discouraging precedent. Why would you look at Pao and think, "Oh yeah, I'm gonna sue this company for discrimination, that'll totally work out!" It takes a huge amount of conviction and, as Pao says, fortitude to even bring such a case (and inside a year, no less). And then to win you need to meet a strict, high standard on your day in court and have the cash to pay for how long it takes to get there. Along the way, you are wide open for attack as a talentless, peevish complainer who just couldn't cut it, with a side of playing the race/gender card. Sprinkle in some online vitriol from the trolls, who always seem to come out harder for women and minorities—despite there clearly being no discrimination against them!—and for most people, you've got a perfect storm for a giant no fucking thanks.

And after all that you have to pay for everything, too? Who wouldn't be chilled by that precedent?

So, says Pao, she is done. Chalk another one up for the patriarchy. In an industry where more than 80 percent of management positions just happen to be held by white men, who also just happen to get the majority of the funding (and make $0.17 more on the dollar), the official default position just happens to be that it couldn't possibly be discrimination.

But on the way out she, at least, leaves Kleiner in a catch 22—they promised to forfeit the $276,000 in costs if she dropped the appeal, which she did! But to do so, they also wanted her to sign a non-disparagement clause, which is a bit late now. So now what's Kleiner to do? They could take her money and look like jerks (changing no minds on that subject), or they could let her keep it (but without a gag order), or they could take the money and then loudly donate it to an anti-discrimination outfit (which might seem ironic to some!). Either way, Pao has managed to come out on top—at least in this case.

Pao vows to continue to invest, write about, and work in the tech industry. Kleiner vows to support "women and minorities in venture capital and technology both inside our firm and within our industry." And the industry vows to change while continuing to maintain a glacial pace of it.

Maybe somewhere there is a CEO who will really promote women and minorities rather than just talk about it, or a whistleblower who vows not to be chilled by it all. We already know there is discrimination—unless you believe that white men are just better than everyone else, which I don't. Regardless of any minor victory Pao may have scored here, let's not forget that it is in the context of conceding defeat. We still have a long, long way to go. Is this the end of the Ellen Pao saga? No—because it's ours.

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